Sentencing guidelines

In December, President Obama commuted the sentences of eight people serving harsh prison terms on crack-cocaine convictions. Why?

Until recently, those who possessed just five grams of crack cocaine received the same five-year sentence as those who distributed 500 grams of powder cocaine; those who used 50 grams of crack received the same sentence as traffickers of 5000 grams of powder cocaine. This 100-to-1 quantity ratio between two chemically identical substances disproportionately hurt African Americans and Latinos because of federal law enforcement’s top-heavy focus on inner-city communities.

The president’s commutations are a major step forward in the ongoing saga to end injustice in cocaine sentencing. This newest chapter comes in the wake of other adjustments that have successfully chipped away at these biased disparities. Three years ago, the Fair Sentencing Act reduced the discredited 100-to-1 ratio between crack and powder cocaine to the more reasonable, but still insufficient, 18-to-1 ratio. The U.S. Sentencing Commission amended its guideline ranges to assure consistency with the provisions of the new act and applied its guidelines retroactively.

The Supreme Court, consistent with revised Department of Justice policy, agreed that cases pending in the pipeline between passage of the new law and sentencing would receive the benefit of the new law. However, only Congress or the president can remedy the plight of the remaining people whose harsh sentences occurred prior to the Fair Sentencing Act.

While momentous, the eight commutations represent only the tip of the iceberg of cases left behind when the Fair Sentencing Act became law. Several thousand cases of men and women in similar situations still await relief. Obama acknowledged that his commutations were an important first step and that “it must not be the last.”

If you are in prison today, you are likely a minority and poor, as Southern Center for Human Rights leader Stephen Bright noted in an interview with ACSblog highlighted earlier this week.

Many are also imprisoned for non-violent drug crimes. A report from the Brennan Center notes that nearly “half the people in state prisons are there for drug crimes. Almost half the people in federal prisons are there for drug crimes. Only 7.6 percent of federal cocaine prosecutions and 1.8 percent of federal crack cocaine prosecutions are for high level trafficking.”

While the Department of Justice recently announced that prosecutors should not seek mandatory minimum sentences in drug cases, Professor Alex Kreit notes that there are “many moving parts” to the nation’s costly war on drugs, which have developed over several decades. The drug war and its impact will not be erased overnight.

In an interview with ACSblog, Nkechi Taifa, senior policy analyst for the Open Society Foundations, takes note of the lengthy war on drugs and its devastating impact on minority communities.

Taifa said, “Communities of color are disproportionately impacted by the war on drugs, by mass incarceration.” And even with some progress, such as the enactment of the Fair Sentencing Act, the statistics “remain staggering.”

She continued, “It is daunting to know that one in three young black men are under the jurisdiction of the criminal justice system on any given day, at any given time; whether in prison, whether in jail, whether on probation, whether on parole.”

Taifa concluded that the situation has greatly harmed generations of minorities. “This absolutely must stop."

When Gil Kerlikowske took office as drug czar four years ago, he said he was going to retire the concept of the war on drugs. During Obama’s first term, however, his policies did not live up to the bold rhetoric. There were a handful of reforms -- perhaps most notably, a reduction (though not elimination) of the disparity between crack and powder cocaine. But at its core, federal drug policy remained almost entirely unchanged between 2009 and 2012.

In recent weeks, the Obama administration has turned its words into action by tackling one of the most significant and criticized features of the drug war: mandatory minimum sentencing.

Enacted in the 1980s, the mandatory minimum drug sentencing laws were the embodiment of the “war on drugs” mentality. Indeed, it’s difficult to think of another federal law or policy as closely linked to the drug war.

Last month, Attorney General Eric Holder announced a new charging policy, instructing federal prosecutors not to seek mandatory minimum sentences in drug cases that met certain criteria. With some of the criteria left open to interpretation, I wrote last month that only time would tell the policy’s true impact. Will the Department of Justice closely monitor local prosecutors to ensure compliance and consistent interpretation of the policy? Or, will federal prosecutors be given the leeway to circumvent or narrowly apply the new policy?

While it will take at least a few more months to know the answers to these questions, last week Attorney General Holder issued a second memo that provides reason for optimism. Holder’s most recent memo expands the new policy by applying it to defendants who have already been charged and encouraging prosecutors to follow the guidance even in cases where the defendant has already pled guilty and is awaiting sentencing, where it is “legally and practically feasible.”

This development is a hopeful sign that the Department of Justice is serious about its new policy.

As the adage goes, politics makes for strange bedfellows. Take, for example, the Senate Judiciary Committee, which convened a hearing last week to consider mandatory minimum sentencing reform. The meeting came on the heels of recent announcements from Attorney General Eric Holder that signaled change in the executive enforcement of sentencing laws. The reigning congressional climate of polarization, clouded in recent weeks by impending fiscal fights, made all the more compelling the general agreement across ideological divides that change is needed, now.

Competing legislation introduced this year is evidence of that consensus, even if the parties involved don’t totally agree on specifics. The Justice Safety Valve Act of 2013, co-sponsored by Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.), was introduced in March; the Smarter Sentencing Act of 2013, co-sponsored by Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah), was announced just last month. The bills have much in common, though the Leahy-Paul proposal goes further than its counterpart by eliminating entirely mandatory sentences for selected non-drug crimes.

Nevertheless, the sponsors of both bills were short on comparison and long on unison as they addressed the issue before a packed hearing room featuring numerous family members of loved ones serving mandatory sentences. Sen. Leahy, chairman of the committee, called the current system “unsustainable,” noting that the U.S. prison population has risen 700 percent since 1970, paralleling a rise in cost to $6.4 billion per year. “Fiscal responsibility demands it,” he said of reform. “Justice demands it.” Sen. Durbin asked a simple question of the sentencing laws: “Is America safer?” Answering in the negative, he said Congress is “doing everything we can to sensibly reduce the level of incarceration in this country.”

From across the aisle, Sen. Paul kicked off the agenda with a scathing condemnation of the impact sentencing laws have on minority groups. “If I told you that one out of three African American males is forbidden by law from voting, you might think I was talking about Jim Crow 50 years ago,” Paul said. “One out of three African-American males are forbidden from voting because of the War on Drugs.” (His comments echoed the work of OSU Prof. Michelle Alexander in her important book, The New Jim Crow, featured on ACS BookTalk.)

by Nkechi Taifa, senior policy analyst for civil and justice reform at the Open Society Foundations and convener of the Washington-based Justice Roundtable

U.S. Attorney General Eric Holder announced significant steps today at the American Bar Association’s annual meeting in San Francisco to correct the deepest, costliest and worst aspects in our criminal justice system. The reforms he outlined in remarks entitled, Smart on Crime, were a long time coming for the criminal justice advocacy community.

Although Congress recently approved legislation to help prisoners re-enter society and to reduce the infamous disparity between crack and powder cocaine, previous Presidents and Congress have never addressed the root causes of mass incarceration. These unjust laws and policies that drive up the U.S. prison population include inflexible front-end decisions that define who goes to prison and for how long, as well as stubborn back-end choices that impede early release.

Today, in the fifth decade of both the March on Washington and the War on Drugs, the Attorney General has ushered in a revolutionary moment by advancing the policy discussion around widespread incarceration that has cost billions of dollars without making society any safer, and reducing flaws of a system that sends too many people of color to prison.

The policies outlined in Holder’s speech will recalibrate the federal criminal justice system by correcting obstacles, inefficiencies and inequities and transforming law enforcement strategies so they alleviate, rather than exacerbate, harsh punishment.